The nearly 2,000 mile-long border between Mexico and the United States is hot and dry. Few rivers cross this arid expanse. Yet, despite the lack of visible, life-sustaining water, the region is growing – the combined border population, currently around 14.4 million, is expected to increase 40% by 2020. The reason for this remarkable growth is ground water, more specifically, transboundary aquifers. As many as twenty aquifers straddle the Mexico-U.S. border, many of which serve as the primary or sole source of fresh water for the border’s communities and unique ecosystems.

Notwithstanding the undeniable importance of the region’s transboundary aquifers, neither Mexico nor the United States seem inclined to pursue a border-wide pact to coordinate management of these critical freshwater resources. While recommendations have been proffered for more than forty years, all appear to have fallen on deaf ears. As a result, these resources are now being overexploited on both frontiers as populations and industries pump with little regard for sustainability or transboundary consequences. Moreover, these subsurface reservoirs are being fouled by untreated wastes, agricultural and industrial by-products, and other sources of pollution. Imminently unsustainable, the situation portends a grim future for the region.

If both federal governments are unwilling to take decisive steps, what else can be done? Are there alternatives to a formal, comprehensive, border-wide regime that would address the complexity and multitude of issues related to the various transboundary aquifers on the border?

In a recently published article, I advocate for an alternative approach, one that sidesteps the respective federal authorities and places the burden of pursuing cross-border cooperation on the communities that so depend on these critical fresh water resources. Essentially, I propose that subnational entities at the local and regional level pursue cooperation over transboundary aquifers in the form of informal, locally-specific, cross-border arrangements.

While this tactic challenges the national governments’ traditional monopoly over international relations, especially as they relate to transboundary natural resources, there is good reason to believe that such an approach could achieve what Mexico City and Washington, DC have failed (or declined) to do – create effective collaborative schemes for the mutual and sustainable management of the region’s transboundary aquifers.

Under the unique circumstances of the Mexico-U.S. border, informal and quasi-formal arrangements are more likely to create viable cross-border pacts that would be respected by the local communities. The degree of interest that the national authorities have in a local issue is often directly proportional to the physical distance from the capitol. In contrast, local decision-makers are typically better informed about local and regional cross-border concerns than federal bureaucrats, especially on issues related to the management of local fresh water resources. Moreover, local authorities are better able to reflect the values and preferences of those most likely to be affected by a water accord with a neighboring country, which, for a local border community, is merely a short drive away. Critically, local decision-making would likely be more sustainable, as well as responsive and adaptable to changing climatic and economic circumstances and improved knowledge, given that the local communities and their children will have to live with their decision far into the future.

In addition, a local approach to the management of transboundary aquifers makes hydrologic sense. No two aquifers are alike; each functions as a complex and unique hydrological system. Moreover, no two aquifers are perceived equally by overlaying communities, especially where those communities are highly dependent on the resources to meet their daily freshwater needs. Hence, aquifers traversing the Mexico-U.S. border cannot be managed effectively through a single, comprehensive, border-wide treaty. While a border-wide scheme may be politically convenient, such an approach could only offer very general guidelines and standards, and may prove detrimental to the sustainable management of some of the region’s subsurface waters. Rather, an effective, sound, and equitable management plan should be tailored to each transboundary aquifer’s unique characteristics and circumstances.

One concern often raised with a local approach to the management of transboundary natural resources is the legality of such action. As is true under most nations’ foundational instruments, both the Mexican and the U.S. constitutions recognize the national government as the sole authority empowered to deal with foreign representatives; they prohibit states, cities, and other subnational political units from entering into treaties and other formal relations with counterparts across the border. The goal here, however, is not to create multiple, locally-specific, formal treaties throughout the border. Rather, the goal is the development and implementation of informal or quasi-formal, locally-specific, cross-border arrangements that are implemented through cooperative understandings or memorandum of understanding, or more structured contracts for goods or services. In the United States, while the former would be immune to Constitutional scrutiny due to their unofficial, unenforceable, and non-binding nature, the latter would be immune to the extent that the U.S. Congress has not preempted such activities under its authority to regulate interstate commerce.

Given the state of the economy, domestic and international terrorism, drug wars, and other societal and political challenges, ground water on the Mexico-U.S. border is not a priority of the Mexican and American governments. Unfortunately, that lack of prioritization is jeopardizing the long-term viability and habitability of the border area and portends the possible downfall of many communities and ecosystems throughout the region.

The two federal governments, though, are not indispensable for developing sustainable and coordinated ground water relations on the border. Through informal locally-specific, cross-border arrangements, frontier communities can, on their own, achieve viable cross-border pacts that will ensure the water futures of their peoples, economies, and environment. For a more comprehensive consideration of this proposal, please see my recently published article.

It is always sad when a colleague passes on. Somehow, it is even more sorrowful when that person was a friend to and respected by so many. On 21 March 2013, Ambassador Chusei Yamada passed away in his native Japan; and the global water community lost a great friend.

During his long and distinguished career, Ambassador Yamada served in various diplomatic posts, including as Japan’s Ambassador to Egypt (1989-92), India (1993-95), and Bhutan (1993-95). He also served as an arbitrator and conciliator under the UN Convention on the Law of the Sea, and most recently, as Special Assistant to the Minister for Foreign Affairs of Japan. While all eminent and critical roles, his work toward bridging the water divide between riparian aquifer nations may be his most significant legacy.

I met Ambassador Yamada in 2003 when I was first invited to participate on a UNESCO-organized advisory group to the UN International Commission (UNILC). Ambassador Yamada had been selected as the UNILC’s Special Rapporteur on the topic of Shared Natural Resources and had undertaken a process to draft principles of law that would apply to transboundary aquifers.

I had always thought it rather astute of the Commission to select someone for this role from a country that, as an island-nation, had no contiguous neighbors with whom to share transboundary fresh water aquifers. As I got to know the Ambassador, though, I realized that his selection as Special Rapporteur was even more portentous in that from the start, Ambassador Yamada poured his heart and soul into this singular challenge.

Ambassador Yamada had no formal background in ground water resources let alone training in a hard science. He was a lawyer and a diplomat, and above all a gentleman (see Ambassador Yamada’s brief bio). Yet, in the six years that our advisory group supported his efforts, the Ambassador became so well versed in hydrogeology and related water issues that the International Association of Hydrogeologists recognized him “for outstanding contribution to the understanding, development, management and protection of groundwater resources internationally” and awarded him their Distinguished Associate Award for 2008 (see IAH newsletter, Issue D30, December 2008, pp. 3-4).

Ambassador Yamada’s contribution to the global water community cannot be overstated. He made every effort to ensure that the principles that the UNILC drafted for the management of transboundary aquifers would be based on sound science as well as be socially and politically feasible. As he gained new knowledge and information, he sought to pass on that education to his colleagues in the UN; as his recommendations faced challenges based on misunderstandings and cross-border mistrust, he used his diplomatic acumen to achieve compromises.

It is true that some of the nineteen draft articles that the UNILC finally transmitted to the UN General Assembly in late 2008 may not be ideal. Nevertheless, they represent the most significant and comprehensive effort to date to address transboundary aquifers and to develop a durable legal framework for the sustainable and peaceful management of shared ground water resources. Based on that framework, nations around the world are now beginning to reach across their frontiers to coordinate and collaborate with their neighbors over their shared aquifers (see e.g., Agreement on the Guarani Aquifer [Spanish] [Portuguese]). Truly, we all owe Ambassador Chusei Yamada our gratitude for laying out such a propitious roadmap.

The following post is by Dr. Salman M.A. Salman, an academic researcher and consultant on water law and policy and a Fellow with the International Water Resources Association. Until December 2009, Dr. Salman served as Lead Counsel and Water Law Adviser with the Legal Vice Presidency of the World Bank. He can be reached at Salmanmasalman [at] gmail.com.

The United Nations started paying attention to water resources in 1972. In June of that year, the United Nations Conference on the Human Environment was held in Stockholm, Sweden. Principle 2 of the Stockholm Declaration stated that “the natural resources of the earth including the air, water, land, flora, and fauna … must be safeguarded for the benefit of the present and future generations through careful planning and management.” Five years later, water resources received far reaching attention of the world community for two full weeks when the Mar del Plata Water Conference was held in Argentina, March 14 to 25, 1977. The Mar del Plata Action Plan included detailed provisions on water resources assessment, water use and management efficiency, the environment, the right to water, and international cooperation. One critical outcome of the conference was the proclamation of the period 1981 to 1990 as “the International Drinking Water Supply and Sanitation Decade.”

The world community’s attention to the emerging problems facing water resources continued. In January 1992 the International Conference on Water and the Environment was held in Dublin, Ireland, and issued the “Dublin Statement on Water and Sustainable Development.” The Conference underscored the fact that water resources management should be based on a participatory approach involving users, planners and policy makers at all levels. It addressed the two principles of water as an economic good, as well as the right to water at an affordable price. This meeting was followed six months later by the United Nations Conference on Environment and Development that was held in Rio de Janeiro, Brazil, in June 1992. Agenda 21 of the Rio Summit “Actions on Sustainable Development” included a separate chapter (Chapter 18) on water resources which laid down detailed plans, programs and action plans to “satisfy the freshwater needs of all countries for their sustainable development.” Cooperation at all levels was highlighted as one important requirement for achieving this objective.

Building on the recommendations of the Rio Conference, the UNGA adopted on December 22, 1992, resolution 47/193, declaring March 22 of each year, as World Water Day, to be observed starting in 1993, and invited states to devote the day in the national context to concrete activities such as the promotion of public awareness through publication and diffusion of documentaries and the organization of conferences, round tables, and seminars related to the conservation and development of water resources.

A number of other actions in the water resources field were thereafter taken by the UNGA. The most important of those has been the adoption by the UNGA on May 21, 1997, by more than one hundred of its members, of the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses. The Convention is predicated on the principle of cooperation of the watercourse states, and indeed it mentions the words cooperation/cooperate fifteen times. The Convention needs the ratification/acceptance of 35 parties to enter into force. Thus far 30 countries have ratified/accepted the Convention, raising hopes that the Convention may even enter into force during 2013, making the year also the year of international water cooperation (see Status of the Convention).

Furthermore, the UNGA adopted resolution 55/196 on December 20, 2000, proclaiming the year 2003 as the International Year of Freshwater, and called for concerted actions and efforts for better management and conservation of water resources, through inter alia, cooperation between the different users. This followed the Millennium Declaration that was adopted by the UNGA on September 8, 2000. One of the eight millennium development goals to be achieved by 2015 is reducing by half the proportion of people without sustainable access to safe drinking water. The UN Summit on Sustainable Development that was held in Johannesburg, South Africa, in September 2002 added a similar goal with regards to sanitation. The need to achieve both goals was underscored by the UNGA resolution 58/217 adopted on December 23, 2003, which declared the period 2005 – 2015 as the “International Decade for Action, Water for Life,” and stated that the goals of the decade should include a greater focus on water related issues at all levels to achieve the internationally agreed goals.

The UNGA decided to give similar attention to sanitation, and addressed this matter through resolution 59/228 adopted on December 22, 2004, as well as resolution 61/192 of December 20, 2006 which proclaimed 2008 as the international year of sanitation.

The fact that close to one billion people lack access to improved water resources, more than two and a half billion people are without provision for sanitation, and one and a half million children under five die annually of water-borne diseases are constant reminders of the challenges facing humanity in the field of water resources. It should also be added that by 2050 one fourth of world population will live in countries with chronic water shortage, mostly in the Middle East and Africa.

Thus, the declaration of 2013 as the international year of water cooperation and the celebrations that will take place on March 22 this year should mark as another important reminder that cooperation is needed at all levels – among individual and corporate users, districts and provinces within the country, and more importantly among states – to manage, share, protect and conserve the most vital heritage of mankind, its water resources, so as to address these challenges.

The following post is by Elana Katz-Mink. Ms. Katz-Mink has an M.A. in Environmental Studies and Water Management from Ben Gurion University and is a J.D. candidate at American University Washington College of Law. She can be reached at ekatzmink [at] gmail.com.

Battir agricultural terraces. Photo courtesy of The Advocacy Project.

Only a few miles from Jerusalem, Bethlehem, and the Green Line, residents of the Palestinian village of Battir practice an ancient agricultural water-use technique dating back to the Roman Period. Agricultural terraces, which were developed to take advantage of natural mountain springs, cover 2,000 hectares around the village where residents cultivate produce for their livelihoods and sustenance.

Over the centuries, the terraces have increased the land’s fertility, preserving the area’s agricultural heritage and environmental integrity (see NY Daily News article and FoEME Report). Israel is currently planning to build the separation wall on the edge of Battir, separating Palestinian farmers from their fields. If constructed, the wall will severely imperil the hydrology and ecology of the area (see Report of the Israel Nature and Parks Authority [in Hebrew]). This type of harm is not novel or unique. In virtually any location around the world, the isolation and fragmentation of landscape can have deleterious effects on the diversity and abundance of flora and fauna. It can also be disastrous for a region’s water security because a sustained, natural flora presence can help maintain both the water table balance and groundwater quality. In addition, a wall can block the natural flow of floodwater from its usual drainage-route resulting in flooding, soil erosion, and habitat destruction.

These grave consequences are further compounded by the very real effects the wall can have on human residents of the area. For example, this past winter in the town of Qalqilya, a Palestinian city in the West Bank, floodwater mixed with sewage as a result of the separation wall and inundated people’s homes and fields (see Ma’an News Agency story). While events like these harm Palestinian residents on their side of the wall, they have serious consequences for Israelis as well. Incidents like Qalqilya pollute the groundwater on which both Palestinians and Israelis rely for domestic, industrial, and environmental uses (see FoEME Report: A Sleeping Time Bomb).

In 2006 in the Palestinian village of Wadi Fuqin, Friends of the Earth Middle East (FoEME) marshaled evidence showing that construction of the wall would cause hydrological and ecological destruction. Additionally, FoEME helped to orchestrate a joint effort by Wadi Fuqin villagers and the neighboring Jewish community of Tzur Hadassah that has temporarily stopped the wall’s construction in this area (see FoEME case study and JTA story).

Battir, unlike Wadi Fuqin, does not have a clear Israeli sister-city lying across the Green Line to protest the wall’s construction on their behalf; however, Battir may have a branch of the Israeli government in its corner. In August 2012, the Israel Nature and Parks Authority published a report condemning construction of the separation wall in Battir because of the risk it posed to the ecological and hydrological integrity of the area (see Report of the Israel Nature and Parks Authority [in Hebrew]). In a water-starved region, such a risk may prove extremely persuasive as Israel is forced to confront how its actions could affect one of its biggest national security concerns: long-term access to and supply of fresh water. While Israel has typically recognized its national security as equivalent to its military security, the risk the wall creates could threaten the security of the nation in terms of its fresh water supplies, resources on which both Israel and the Palestinian Authority depend.

In 2007, Battir both brought suit in the Israeli Supreme Court (ISC) and requested Israel’s Finance Ministry to consider rerouting the wall. The Finance Ministry has not yet ruled, but construction was halted in fall 2012 by the ISC when it ordered cessation and a timely response by the Ministry to the allegations of the Battir residents. Generally, the ISC has held that the wall is a legitimate security need for Israel, despite the International Court of Justice’s advisory opinion finding the wall illegal under international law. In a few rare instances, though, while maintaining the legitimacy of the wall, the ISC has ordered the route be changed or construction stopped and/or dismantled on grounds that the wall’s route would not fulfill its purposed security purposes (e.g., Beit Sourk, Bilin, Wadi Fuqin). Nevertheless, these decisions are the exception, and the ISC consistently has accorded more weight to the Israeli Defense Ministry’s expressed military security concerns.

On December 13th, 2012, the ISC issued an interim decision ordering the Israeli Defense Ministry to submit plans for an alternate route for the wall in the Battir area within ninety days, necessitating consideration of the environmental impacts of the route. The Israeli Defense Ministry has proposed a fence, rather than a stone wall, as a compromise that it says will reduce damage to the landscape. Battir and conservation experts maintain that a fence will cause the same harm as a stone wall (see articles in Haaretz [in Hebrew] and the Environment And Climate In The Middle East blog). The ISC has yet to issue a final decision. While the interim decision is only a temporary win for the residents of Battir, it marks the latest case demonstrating the exception to the military security rule. Perhaps, this decision signals a shift from the ISC’s military security rule to the consideration of water and environmental security concerns. The final decision will be extremely significant for Battir, and potentially for the jurisprudence of national security. Regardless of the final outcome, the interim decision mandating consideration of ecological impacts is an achievement in the continued struggle for recognition of water and environmental security as an integral part of national security.

Post Script (March 29, 2013)

A metal fence was proposed as a compromise by the Israeli Ministry of Defense, but has not yet been accepted by the Battir residents, environmentalists, or the ISC. Even if a fence were accepted it would not solve most of the ecological or hydrological issues that exist with a cement barrier. Often the structure of the fences that separate the West Bank and Israel entail much destruction in the surrounding area during the construction phase (uprooting of flora and fauna that help to clean water as it percolates to the water table). In addition, a large ditch is usually dug on the West Bank side of the fence (the source of water flows) that would prevent water from reaching the sea. Lastly, the road and fencing would still prevent the migration of flora and fauna in the area.

The following post is by Margaret J. Vick. Ms. Vick served as the embedded advisor to the Ministry of Energy and Water, Government of the Islamic Republic of Afghanistan from 2009-2010 in a program funded by USAID. She can be reached at mjvick [at] gmail.com.

The major basins in Afghanistan are the Panj and Amu Darya, the Kabul, the Helmand, and the Hari-Rud. The Panj, a tributary of the Amu Darya, is shared with Tajikistan and the downstream Amu Darya is shared with Uzbekistan and Turkmenistan. The Kabul River is tributary to the Indus River and is hydrologically shared with India and Pakistan, but because of the division of the basin by the 1960 Indus Waters Treaty, is not legally shared with India. The Hari-Rud is shared with Iran and Turkmenistan, while the Helmand River is shared with Iran. The Panj/Amu Darya, Hari-Rud, and Helmand river basins are all endorheic or terminal basins.Of the four basins, only the Helmand River has a water sharing agreement. The Helmand River Treaty between Afghanistan and Iran was negotiated in the early 1970’s and entered into force in 1977 (see, e.g., here). The history of the treaty is unclear. Little has been written about the negotiation process and some recent commentaries have questioned its entry into force (see, e.g., here). What is known is clouded by the cold-war era in which it was negotiated. Nevertheless, the treaty is an agreement based on modern principles for benefit sharing in a region with few positive examples.

The Kabul River flows to the Indus River. Because some of its tributaries (namely the Bara, Kunar and Swat, rivers) originate in Pakistan, the Kabul basin forms a hydrologic phenomenon in which Afghanistan and Pakistan are both upstream and downstream from each other. Both countries need better flood control measures on the river and Afghanistan is interested in the river for domestic water supplies and power generation for its capital city, Kabul. Talks between the two riparians over water management, however, historically have been secondary to the cross-border tensions.

The Panj River, which forms a considerable portion of the Afghanistan-Tajikistan border before being joined the Vakhsh River to form the Amu Darya, is dominated by remnants of the Soviet barter system of water for oil. The economy of the region is hampered by a lack of energy, frequent flooding, and political conflict over water. All four of the Panj/Amu Darya basin riparians (Afghanistan, Tajikistan, Uzbekistan, and Turkmenistan) could benefit from developing the basin. Afghanistan, however, has not participated in any of the numerous agreements regarding the Aral Sea and was never part of the Soviet water regime in the region. Because of its outsider status it may be able to play an important role in regional water sharing discussions in the future.

In fact, Afghanistan and most of its neighboring states are in need of water for domestic purposes, reliable irrigation supplies, flood control and hydropower. The circumstances seem ripe for an agreement. Nevertheless, in this region of conflict, cross-border incursions and lack of trust, circumstances and needs may not enough to reach a water-sharing agreement. The identified requirements and the political will of the countries, to date, has not been enough. There needs to be a foreseeable and reliable means to accomplish the sharing of water.

As a result of decades of conflict, the human capacity in Afghanistan is limited due to the millions of people killed, the millions who fled the country, and the millions more denied an education. Those few Afghans who are available to negotiate water-sharing agreements are highly skilled and dedicated; yet, the need for their services within Afghanistan is immediate and immense.

Water sharing agreements take time and commitment. The Afghan government must decide how to best use their limited capacity. If they cannot have certainty as to whether agreed-upon dams, power plants and infrastructure will be built, how should they allocate and dedicate their limited resources? The Afghan Government is faced with the dilemma of which comes first: the agreement or the commitment to build the infrastructure. Until one or more donors step forward to fund both the process for negotiations and the infrastructure, neither may occur. Individuals within the Afghan government have little time and few resources to engage in protracted negotiations without a promise of results on the ground.

A donor’s commitment to build watercourse infrastructure made contingent upon a water-sharing agreement has been a common impetus for agreements on international watercourses and for states within a federal system. The 1960 Indus Waters Treaty took decades to negotiate and required continuing commitments from the World Bank to fund its implementation. It is presently unclear whether such a commitment is available for any of the basins shared by Afghanistan and the neighboring states.

The economic viability of Afghanistan depends on protection from floods and drought, adequate domestic supply, reliable irrigation, and power. All can be advanced through water-sharing agreements with neighboring states. Development of the Kabul River basin is key for stability in the southeastern region as is development of the Panj basin in the north.

Notwithstanding, until an external commitment is secured for technical support and training for the process of negotiation, as well as to implement the results of negotiations, the benefits of Afghanistan’s and the region’s transboundary rivers will remain unrealized.

The following post is by Regina M. Buono, an associate attorney with the law firm of McGinnis, Lochridge, & Kilgore L.L.P in Austin, Texas. She can be reached at rbuono [at] mcginnislaw.com or found on Twitter as @ReginaBuono.

In response to ongoing climatic changes and uncertainties, the 1944 Water Treaty was recently amended by Minute 319 to provide for both nations to share surpluses and water shortages, permit Mexico to store some of its allotted water in the United States, facilitate investment in Mexico’s water infrastructure, and restore the environmental flows of the Colorado River to the Gulf of California, albeit on an experimental scale.

Minute 319 allows Mexico, which has a dearth of storage capacity, to store some of its Colorado River allotment in Lake Mead, located in Arizona and Nevada. This arrangement is an extension of Minute 318, which modified the 1944 Water Treaty after an earthquake in the Mexicali Valley in 2010 severely damaged Mexico’s canal-based water distribution system. In addition to enhancing Mexico’s storage capacity and water security, the deal helps keep the water level in Lake Mead more predictable, which in turn protects the water intake pipes that supply the vast majority of Las Vegas’ drinking water. Minute 319 also grants the U.S. a one-time allotment of 124,000 acre-feet of water in return for U.S.-financed infrastructure improvements in Mexico. The infrastructure improvements are intended to generate water savings that will benefit all river users.

In addition, the amendment permits the U.S. to send less water to Mexico in drought years, thereby sharing the burden previously borne solely by U.S. water users. It allows for the creation of an Intentionally Created Mexican Allocation (“ICMA”), wherein Mexico may adjust its water delivery schedule to allow for later use. Mexico may adjust its order in dry years to offset the mandated reduction with deliveries from the ICMA or other water previously deferred. In years in which Lake Mead is projected to be at or above certain elevations and in which Mexico has deferred delivery of or created a certain minimum amount of water, Mexico may increase its order for river water in specified increments based on the water elevation. However, the annual delivery of deferred water may not exceed 200,000 acre-feet and total annual delivery may not exceed 1.7 million acre-feet.

Finally, the amendment creates a pilot program to provide water to be used as environmental flows for the Colorado River delta, which will benefit the river and the myriad species that are found there. The delta has been largely dry for decades; most years the flow of the river is diverted before reaching its mouth at the Upper Gulf of California, leaving the river channel completely dry more than 90 percent of the time and damaging the delta ecology and wetlands that once covered the region. Minute 319 requires water users in the U.S. and Mexico to provide a one-time high-volume “pulse” flow of 105,000 acre-feet, which will augment base flows secured by a water trust since 2008. Scientists and advocates hope that the pulse and base flows will create 2,000 acres of new wetland habitat and will lay the groundwork for more extensive restoration projects.

Minute 319 offers a number of benefits for both nations, as well as the water utilities and environmental organizations that depend on and care for the river. On a practical level, Minute 319 provides water departments, cities, states, and other political subdivisions that rely on the Colorado River for fresh water with the added benefit of certainty and peace of mind, which will allow them to make better business decisions and allocate risk more precisely. Moreover, investment in Mexico’s infrastructure (e.g., concrete-lined canals instead of the current dirt channels) will benefit water users throughout the basin as a result of greater efficiency and reduced waste, which will allow conserved water to be shared with those entities that helped finance improvements.

Although the amendment has generally been received favorably by water and governmental entities alike, it is not without its critics. Not everyone shares the opinion that allowing Mexico to store water in the lake is an unqualified good, and some have voiced resentment that domestic water users have not been granted the same flexibility. The Imperial Irrigation District, a primarily agricultural water district in California and the largest single recipient of Colorado River water, refused to sign the agreement because it wanted to have the same ability as Mexico to bank its water in Lake Mead. Some parties have expressed concern that keeping more water in Lake Mead means that less water will be available for hydroelectric power generation and, because water levels in the lake serve as a drought indicator, that changes in the lake’s levels due to Mexico’s ability to store water could delay a declaration of drought, in turn postponing necessary distribution reductions. The Confederación Nacional de Campesinos, Mexico’s national farmers’ association, has also expressed concerns, calling upon farmers to present a “united front” against the agreement, which it believes will harm agricultural producers’ economic interests.

Despite differences of opinion over its impact, the most important aspect of Minute 319 may be the basis it creates for future cooperation as the river is further impacted by overuse, drought, and climate change. Scientific research and environmental models have demonstrated that the American southwest has been impacted by and will continue to suffer from the effects of climate variability. It is also an area with a rapidly growing population. While the region presents a challenge to water and environmental scientists and managers, as well as for society generally, this agreement may serve as an example of creative cooperative management for other countries facing water-related challenges. Disagreements over water resources are projected to be a leading cause—if not a primary cause—of cross-border social and political conflict in decades to come. Accordingly, strengthening ties between Mexican and U.S. governmental officials, scientists, and water managers is critical for facilitating future cooperation and minimizing tensions. The successful completion of this negotiation presents a precedent for cooperation going forward, and the relationships forged in the process will be valuable for future compromises over the management of the Colorado River, as well as other transboundary waters on the border.

Minute 319 is limited to a term of five years. The short duration may have been necessary to facilitate the amendment’s acceptance by Mexican officials, as Mexico has long considered the 1944 Water Treaty to be inviolable and complained about American management practices. Nevertheless, officials on both sides have expressed the hope that the Minute’s implementation may be extended in the future.

The following post (Part II of II), by Dr. Alistair Rieu-Clarke (a.rieuclarke [at] dundee.ac.uk), IHP-HELP Centre for Water Law, Policy & Science (under the auspices of UNESCO) and Ms. Flavia Loures (flavia.loures [at] wwfus.org), WWF, continues the debate initiated in Part I concerning the importance of the entry into force of the UN Watercourses Convention for the codification and development of international water law.

Once in force, the 1997 UN Watercourses Convention (UNWC) would be better equipped to deal with the issue of fragmentation. To date, the legal architecture for international watercourses remains weak. While there are over 400 basin-specific agreements, 60 percent of international watercourses lack cooperative management arrangements, and the majority of agreements tend to be bilateral, even where more than two states share a particular watercourse (see article by Zawahri & Mitchell). Finally, many watercourse agreements fail to address key issues in transboundary cooperation, such as emergency situations, data-sharing, consultation and negotiation procedures, or dispute settlement. Such arrangements are ill-equipped to deal with current and future challenges and threats concerning the world’s finite freshwater supplies, such as population growth, climate change, ecosystem degradation, water insecurity, and so forth. Moreover, since 1997, despite the Convention having some influence – as noted in Part I – there has been a significant decline in the adoption rate of basin and sub-basin agreements, notwithstanding increased calls for stronger governance arrangements.

A global framework agreement, if in force, could play an important role in addressing such fragmentation by supplementing and strengthening the legal architecture where i) no basin agreement exists; ii) not all basin states are party to an existing agreement; and/or iii) an existing agreement only partially covers matters addressed by the UNWC. It was in this sense that the Nordic Counties summed up the value of a framework agreement during the Convention’s drafting process, stating that it, ‘provides a good basis for further negotiations. It leaves the specific rules to be applied to individual watercourses to be set out in agreements between the States concerned, as has been the current practices’ (see replies of Governments to the Commission’s questionnaire at A/CN.4/447, 1993).

At the regional level, the 1992 UNECE Water Convention and the SADC Protocol on Shared Watercourses illustrate the role of framework instruments in addressing gaps and failings in basin and sub-basin agreements and, as discussed below, in supporting and facilitating the application, interpretation and implementation of those instruments. However, the aforementioned convention and protocol are the only examples of existing regional instruments. Therefore, the need for a global framework remains. Besides, regional instruments may fail to include all states within a certain international watercourse. Such is the case with the SADC Protocol as compared to the Congo and Nile basins.

The UNWC may also address fragmentation at the horizontal level. Entry into force would enable synergies to be developed between the Convention and other water-related multilateral environmental agreements, such as those dealing with climate change, biodiversity, wetlands, desertification and so forth (see report by Brels, Coates and Loures).

In addition, an effective UNWC would serve as a solid and widely accepted basis for the development of treaty law at the global level. In this regard, it is worth asking whether the ILC Draft Articles on Transboundary Aquifers would have been different if the Convention had already entered into force? Would the draft articles have ensured better integration between general international water law and the principles and rules applying specifically to shared groundwaters? Would countries be more open to considering the draft articles as a basis for a future groundwater protocol to the UNWC, rather than for a separate, independent convention that could possibly aggravate the issues of fragmentation and treaty congestion? (see article by Loures and Dellapenna).

From a political standpoint, formal and widespread support for the UNWC would send a definitive and clear message that, as codified in the Convention, international law requires states to cooperate over international watercourses, lakes and aquifers, including, where appropriate, through joint planning and actions, and within the framework of equitable and reasonable use and participation (see UNWC, Articles 5, 8, 20).

For lawyers, this may seem redundant, as the duty to cooperate is widely regarded as part of customary international water law. However, in the context of global water negotiations, an effective and widely endorsed UNWC could make a major difference. For example, during negotiations at the 6th World Water Forum, one state raised the issue that the UNWC cannot even be referred to as a “convention”, because it is not yet in force. During the development of the ILC Draft Articles on Transboundary Aquifers, another state pointed out the need to avoid linking that instrument to the UNWC, because the latter is not in force and, therefore, may not reflect the status of customary law. More recently, the “water and sanitation” section of the Rio document is permeated by a nationalistic tone: it refers to “actions within the respective national boundaries” to protect ecosystems, while never mentioning transboundary water issues, watercourse agreements or the International Year on Water Cooperation (seeUN Resolution 65/154). For those working on these issues, it was disheartening to follow the interstate discussions that preceded the adoption of that document, and which led to the deletion of the paragraph dealing with water cooperation at various levels.

Arguably, if the UNWC had been in force, states would have less room to manoeuvre for downplaying the duty of watercourse states to cooperate and the role of international law in this context, leaving more time for discussions on substantive issues. This can be exemplified by the good progress made on oceans in Rio within the framework of international law, as reflected in UNCLOS. Hence, entry into force of the Convention would provide the UN and other international organisations with a strong legal mandate by which to support and advance transboundary water issues at the global level – a mandate that is currently lacking (see WWF/DfID Report).

Closely related to the political considerations noted above, entry into force may also help assist a key factor inhibiting the effectiveness of the Convention, namely awareness. Our experience, based on stakeholder interviews and workshops, demonstrates that levels of understanding and awareness of the UNWC are relatively low amongst key government officials in places such as Central America, West Africa and South-East Asia. Arguably, therefore, because the Convention is not yet in force, it has not been as influential as it could and should be, simply because governments have prioritized treaties that have already entered into force and to which they are bound.

In conclusion, should we care if the Convention enters into force? Conversely, we might ask, given the above, whether we could actually afford not to bother with its ratification process.

The following post (Part I of II), by Dr. Alistair Rieu-Clarke (a.rieuclarke [at] dundee.ac.uk), IHP-HELP Centre for Water Law, Policy & Science (under the auspices of UNESCO) and Ms. Flavia Loures (flavia.loures [at] wwfus.org), WWF, is based on experiences gained through a range of activities conducted as part of the UN Watercourses Convention Global Initiative.

Anticipation of the Convention’s imminent entry into force has also prompted the question, ‘what next’? In this regard, at the 6th World Water Forum (Marseille, March 2012), France offered to host the 1st meeting of the parties, and UN organisations, including the UN Economic Commission for Europe (UNECE), UNESCO and UNEP, were identified as potential candidates for ‘housing’ the Convention – whatever form that might take.

As momentum finally gathers around the UNWC – a keystone global legal instrument adopted over 15 years ago – the question at the forefront of discussions is, ‘why should we care’? Would entry into force of a global framework instrument on the law of the non-navigational uses of international watercourses really make a difference?

From the legal standpoint, a primary driver behind the UNWC was the codification and progressive development of international water law, which, in 1970, was recognised by the UN General Assembly as, ‘still based in part on general principles and rules of customary law’ (see UN General Assembly Resolution 2669(XXV)). The value of the Convention was, therefore, to provide greater detail, clarity and certainty as to what was, and what should be, the applicable international law pertaining to the non-navigational uses of international watercourses.

Simply through its adoption by an overwhelming majority of UN Member States – after an extensive process of treaty drafting and negotiation – the Convention presents an authoritative statement of customary international law. In the Gabĉíkovo-Nagymaros case, for instance, the International Court of Justice made explicit reference to the UNWC only months after its adoption by the General Assembly. Additionally, numerous basin and sub-basin agreements adopted after 1997 have been influenced by the Convention: in the case of the SADC Protocol on Shared Watercourses, many of the key provisions were taken from the Convention almost verbatim.

Although the UNWC already enjoys an influential role, its current status leaves open to debate which of its provisions reflect existing or emerging customary law, as well as the content of those principles widely accepted as custom. If the Convention were to enter into force, it is likely to trigger a snowball effect, leading to wider ratification by a representative body of states. At that point, all its provisions would be considered as reflecting customary international law and thus become potentially binding even on non-parties. Entry into force would also consolidate the content of the principles of equitable and reasonable use and harm prevention, as well as their relationship, as codified under the UNWC.

In this sense, entry into force and widespread ratification are necessary to ensure the successful completion of the task entrusted to the International Law Commission: that of codifying, clarifying and progressively developing the law of the non-navigational uses of international watercourses, with a view to offering a clearer, more stable framework for transboundary water cooperation at the global level.

It was for this reason that, during the Convention’s drafting process, the Nordic Countries cautioned that, ‘this [framework] approach should not lead solely to producing recommendations’ (see replies of Governments to the Commission’s questionnaire at A/CN.4/447, 1993). The statement alludes to the importance of a legally binding framework instrument. A legally binding text holds greater potential for shaping state practice at the basin level. The ratification process itself normally requires the government to conduct an extensive consultation process with a wide range of national stakeholders. Ratification also tends to provide a stronger assurance that the rules and principles contained within that instrument will be adhered to not only by the government in power, but also by its successors.

That said, an effective and widely endorsed UNWC, on its own, might have limited impact. For the Convention to fully meet its potential in supporting and facilitating transboundary water cooperation at all levels, the appropriate institutional arrangements must be in place by which to deepen knowledge and understanding of the Convention and its inherent rules, principles and aspirations. Evidence of the need and value of such arrangements can be seen in the case of the UNECE Water Convention. Through its meeting of the parties, secretariat, work programmes, implementation projects and so forth, the UNECE Water Convention has played an effective role across Europe and neighbouring regions in supporting implementation of basin and sub-basin arrangements. Exploring synergies between the UNECE Water Convention and the UNWC, therefore, provides considerable promise in ascertaining how ‘multi-basin’ treaty regimes can make a difference at the basin, sub-basin and national levels. In addition to global institutional mechanisms supporting the convention, such discussions should include the role of river basin and regional integration organizations as hubs for coordinating and monitoring the UNWC’s future implementation.

Benin became the 27th Party to the 1997 UN Watercourses Convention when it submitted its instrument of accession to the Secretary-General of the United Nations on 5 July 2012. Benin is the third country to join the Convention this year following Luxembourg ratification on 8 June 2012 and Denmark accession on 30 April 2012. According to recent press reports (here), the UK will soon join their ranks. The Convention will enter into force 90 days after the 35th nation submits its instrument of ratification, accession, acceptance, or approval to the UN Secretary-General.

You can find the updated status of the Convention here. Also, the IWLP has added a “Convention Watch” news box on its homepage here.

On 8 June 2012, Luxembourg became the 26th nation to ratify or otherwise become a full party to the 1997 UN Convention on the Non-navigational Uses of International Watercourses. The other 25 states include: Burkina Faso, Denmark, Finland, France, Germany, Greece, Guinea-Bissau, Hungary, Iraq, Jordan, Lebanon, Libya, Morocco, Namibia, The Netherlands, Nigeria, Norway, Portugal, Qatar, South Africa, Spain, Sweden, Syria, Tunisia, and Uzbekistan. In addition four nations have signed the treaty but have yet to become full ratifying members: Côte d’Ivoire, Paraguay, Venezuela, and Yemen. You can find the updated status of the Convention here.

Of the 26 ratifications, two occured in 2012 (so far), three in 2011, three in 2010, and two in 2009. If the present rate of ratifications continue, the Convention could come into force within three or so years. The Convention requires 35 parties for it to achieve that status.

While it is probably still too early to identify any definitive trends, it is at least curious that of the 26 states that have ratified the Convention, twenty are either from Africa (8) or Europe (12). Five others are from the non-African Middle East region, albeit its also true that eight are MENA nations. Only one ratifying state is found in Asia (Central Asia to be precise) and none come from the American hemisphere.

What this might mean is still unclear. But the geographic distribution of the ratifications could suggest a geographic bias or disfavor for the Convention. As nations continue to ratify the instrument (and I do expect more nations to do so), it will be interesting to see whether this trend continues. Moreover, it will be interesting to see what this might mean if and when the Convention comes into force.